One of the reasons why critics continue to attack the Strasbourg Court is its alleged judicial activism in the field of migration. The recent case of Shala v. Switzerland illustrates that the criticism on the Court is at best exaggerated and at worst simply a straw man. In this case, the Court all too easily accepts the expulsion of a settled migrant, on the basis of some light criminal convictions. This blog post highlights some of the judgment’s flaws, in particular how it is hard to reconcile with Grand Chamber case-law, and how the judgment fails to do justice to the real experience of the families concerned.
The applicant is a Kosovan national who had arrived in Switzerland in 1990, at the age of 7. Between 2003 and 2007, he was convicted for a number of offences: a suspended prison sentence of 3 months for the hit and run of a pedestrian, who was lightly wounded (February 2003); a prison sentence of 30 days for another traffic offence (October 2003); a suspended 45 days prison sentence for a brawl (July 2004); a fine for abuse of a telecommunications installation and for the blackmail of his former girlfriend (June 2007). In September 2007 he married a Kosovan national in Kosovo and requested a family reunification. In November 2007 the Aliens Office of Schaffhouse pronounced the applicant’s expulsion for a length of ten years. His appeals were unsuccessful and in March 2008 he was deported from Switzerland.
The Court all too easily rejects the applicant’s complaint under Art. 8 ECHR. The main reason for this finding are the social ties of the applicant with Kosovo: he has frequently returned to Kosovo, during holidays and periods of unemployment, and his wife and her family live there. According to the Court, these ties constitute ‘sufficiently exceptional circumstances’ (‘circonstances assez exceptionnelles’) that justify the applicant’s expulsion. This is strange, because social ties with the country of origin are as such no reason in favour of expulsion, the Court itself has generally only considered it to be an element that mitigates the impact of the interference. Moreover, it is inconsistent with the Court’s prior case-law and decreases the stronger protection generally offered to settled migrants.
In the leading case of Maslov v. Austria, the Grand Chamber held that “for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion.” To determine whether such very serious reasons are present, the Court has always focused on the question whether the individual concerned had been convicted for very serious criminal offences. In fact, this is nothing more than an increased threshold applied to the first criterion of the Üner v. The Netherlands test: the nature and seriousness of the offence committed by the applicant. While this is merely one of the elements in the balance with respect to migrants in general, only ‘very weighty reasons’ (or ‘sufficiently exceptional circumstances’) related to the criminal record of a settled migrant can be taken into account: the other Üner criteria are only relevant for the outcome insofar as the ‘very weighty reasons’ test is fulfilled. Shala v. Switzerland is probably the first case in which the Court considers social ties with the country of origin to be such ‘very weighty reasons’. In order to act in the spirit of Maslov, the Court should have kept the ‘very weighty reasons’ test clean from non-criminal considerations. Unsurprisingly, the dissenting Judges Popović, Karakaş and Pinto de Albuquerque consider the applicant’s expulsion to be shocking (“choquante”) in the light of the applicant’s light criminal record.
Punishing transnational migrants
By considering the social ties with the country of origin as ‘very weighty reasons’ in the sense of Maslov, the Court further decreases the protection offered to ‘transnational’ migrants, i.e. migrants who have social ties with more than one country at the same time. Anuscheh Farahat has observed that “the Court in fact privileges exclusive and static affiliations to one country instead of taking into account transnational affiliations. It thereby leaves transnational migrants without effective protection against expulsion” (A. Farahat, “The Exclusiveness of Inclusion: On the Boundaries of Human Rights in Protection Transnational and Second Generation Migrants”, European Journal of Migration and Law 2009, 254). If the Court wants to pay true respect to the private and family life of migrants, it should not punish them if they exercise this right in such a way as to also maintain certain bonds with their country of origin.
Failure to give weight to the applicant’s realities
This failure to take into account the realities of a transnational migrant as to the way in which he or she desires to enjoy his or her rights, is also clearly present in the case of Shala. While the applicant did maintain social ties with Kosovo and while this was clearly illustrated by his marriage, the explicit desire of the applicant and his wife was to found a family in Switzerland. According to the dissenters, the majority did not sufficiently take that desire into account, nor did they take into account that the applicant’s expulsion seemed to have been pronounced as a response to the applicant’s wife’s request for family reunification. Another problematic aspect is that the majority ruled that the expulsion did not amount to a definitive severing of his family ties in Switzerland, because he can maintain regular contact with his family through other means of communication or they could visit him in Kosovo. Again the Court ignores the reality of the applicant and seems to apply an abstract, decontextualized conception of family life, as if it doesn’t matter where or how the applicant maintains his family ties.
In another Second Section judgment issued on the same day, Kissiwa Koffi v. Switzerland, the Court took into account the possibility for the applicant to ask for a temporary suspension of her expulsion. Thereby she might be allowed to visit her husband, a Swiss national of Ivory Coast descent, and her son, who had first joined the applicant in Ivory Coast but was returned to Switzerland because he had contracted malaria. In a dissenting opinion, this was criticized by Judges Raimondi and Pinto de Albuquerque, not only because the possibility of asking a temporary suspension was speculative and left all discretion to the national authorities, but also because it couldn’t be considered as an alternative for the right of the family concerned to enjoy their right to live together, a fundamental aspect of the right to respect for family life.
This approach of the Second Section is not only problematic because it does not do justice to the real experience of the families concerned, but also because it places the burden of seeking alternatives for enjoying family life on the applicants. Alternatives are relevant in human rights adjudication with respect to the way the states interferes with a given right: the existence of a less restrictive alternative is an important factor in the proportionality analysis. Alternatives are thus relevant with respect to the interference, not with respect to the enjoyment of a right: an individual should never justify why he or she cannot enjoy his or her right in another way (i.e. through telecommunications or visits in Kosovo, in the case of Shala, or through the alleged possibility of temporary visits to Switzerland, in the case of Kissiwa Koffi).
The case of Shala illustrates two problematic aspects of the Court’s migration case-law. Firstly, without formally overruling settled case-law, in practice the Court provides less protection than its precedents require. Despite what the critics claim, the Court seems to move in the direction of less rather than more protection in migration cases (see also other 2012 judgments, such as Samsonnikov v. Estonia, Balogun v. the United Kingdom and Antwi and Others v. Norway, all of which contain dissenting opinions criticizing the majority for providing too little protection to migrants). Secondly, the Court does not do justice to the real experiences of the families concerned, in particular with respect to so-called ‘transnational’ migrants. This is also illustrated by the other Second Section case of Kissiwa Koffi. The indignation of the dissenting judges in both cases sparks some optimism. Let’s just hope they can convince their Section colleagues to deliver true justice to migrants in future cases.